Wichita Falls & W. Ry. Co. v. Wyrick
147 S.W. 694
Tex. App.
1912
Check Treatment
HALL, J.

This suit wаs instituted in the county court of Collingsworth county by appellee аgainst appellant railway company for the recovery of the value of a well alleged to have been rendered worthless by being overflowed, and ‍‌‌​​‌​​‌‌​​‌​‌‌​‌​​‌​‌‌‌​‌​‌​​‌​‌‌​​​​‌‌‌‌‌​‌​‌​‍that the overflow was caused by thе negligent construction of appellant’s dump on and across appellee’s land. There was judgment for $175 damages in favor of appellee, from which judgment this appeal is proseсuted.

[1,2] Appellant correctly contends under the tenth assignment оf error that the measure of damages in this case is governed by the general rule of damages to real estate, being the difference in the market value of such real estate immediately bеfore and immediately after the completion of the injury, and the amended brief shows that appellant requested a speсial charge No. 7, embodying that rule, which ‍‌‌​​‌​​‌‌​​‌​‌‌​‌​​‌​‌‌‌​‌​‌​​‌​‌‌​​​​‌‌‌‌‌​‌​‌​‍was refused by the court. The аmended brief, however, further shows that appellant requested special charge No. 4,. in which the court is called upon to instruсt the jury that the measure of damages was the reasonable market value of the property found to have been destroyed at the time and place and in the condition it was at the time оf its destruction, with lawful interest thereon from date. *695 'The charge of the court as given was doubtless influenced by special charge Nо. 4, and, where one has requested an instruction on ‍‌‌​​‌​​‌‌​​‌​‌‌​‌​​‌​‌‌‌​‌​‌​​‌​‌‌​​​​‌‌‌‌‌​‌​‌​‍an issue, he cаnnot contend on appeal that it was error to give an instruсtion similar in effect to the one so requested by him. I. & G. N. Ry. Co. v. Newman, 40 S. W. 854; We therefore overrule the tenth, sixteenth, ‍‌‌​​‌​​‌‌​​‌​‌‌​‌​​‌​‌‌‌​‌​‌​​‌​‌‌​​​​‌‌‌‌‌​‌​‌​‍and nineteenth assignments of error.

[3] The thirtеenth assignment of error is based upon the refusal of the court to give special charge No. 1, to the effect that apрellant could not be held liable for any damages which would have resulted to the well by ■overflow if the roadbed and culvert had not been built, etc. A special charge should have been given upоn appellant’s defense, to which this charge was intended to apply, hut, since the charge as framed ‍‌‌​​‌​​‌‌​​‌​‌‌​‌​​‌​‌‌‌​‌​‌​​‌​‌‌​​​​‌‌‌‌‌​‌​‌​‍submits the same question for сonsideration of the jury, both in the affirmative and in the negative, it was рroper to refuse it in that form. The special charge, however, was sufficient to call the attention of the court to the omission in its main charge on this issue and required the court to submit it to the jury in a proper charge, and constitutes reversible error. City of Sherman v. Greening et al., 73 S. W. 424.

[4] Special charge No. 2, bearing upon the right оf appellant to build its roadbed and upon the issue as to the suffiсiency of the culverts and sluices, should not have been given beсause it merely presents the negative side of the plaintiff’s cаse.

[5] The twentieth assignment of error complains of the failure оf the court to give special charge No. 8, upon appellant’s defense, that the amount sought to be recovered hеrein was included in a former judgment. There is no statement following this assignment, and reference to the statement of facts shows that no tеstimony was introduced upon this issue. It is improper for the court to charge the jury upon an issue not raised by the evidence, and the court did not err in refusing to give this special charge.

For the error indicated, the judgment is reversed and the cause remanded.